HOW DOMESTIC AND FAMILY VIOLENCE CAN IMPACT ON

PROPERTY DEALINGS Presented By Owen Hodge Lawyers

INTRODUCTIONOrdinarily, Courts determine property settlements through a process that considers each party’s contributions, likely future needs, the length of the relationship and other equitable factors. “Fault” is generally not a part of the calculation.

In some circumstances, however, where severe, ongoing family violence has made it “significantly more arduous” for one party to contribute, Courts may consider that factor when dividing property. The legal system recognizes that because it is, quite frankly, more difficult for victims of abuse to contribute to a family’s welfare, those contributions should essentially “weigh” more in the final division of the marital estate.

INTRODUCTIONOrdinarily, Courts determine property settlements through a process that considers each party’s contributions, likely future needs, the length of the relationship and other equitable factors. “Fault” is generally not a part of the calculation.

In some circumstances, however, where severe, ongoing family violence has made it “significantly more arduous” for one party to contribute, Courts may consider that factor when dividing property. The legal system recognizes that because it is, quite frankly, more difficult for victims of abuse to contribute to a family’s welfare, those contributions should essentially “weigh” more in the final division of the marital estate.

KENNON ADJUSTMENTKnown as the “Kennon adjustment,” the doctrine arises from a 1997 case, in which the husband and wife entered the marriage with approximately equal financial contributions. Thereafter, according to the record:

• the husband became addicted to methamphetamines, and his employment became irregular;

• the wife remained employed and contributed to home duties;

• the wife took on the major share of responsibility for the care of the husband and minor children after the husband’s motor bike accident;

• both she and the children were victims of domestic violence, which included threats to kill her and the intentional destruction of property; and

• the husband was ultimately imprisoned for breach of Intervention Orders issued in response to the wife’s complaints about the violence.

KENNON ADJUSTMENT

The Court found that the wife was entitled to an additional percentage of the asset pool because:

• her contributions to the family and maintenance of the home were significantly more difficult to make as a result of the husband’s violence.

• the husband’s initial contribution was outweighed by the wife’s ongoing contributions; and

• an additional adjustment in the wife’s favour was merited, as she had the full time care of her children and the effect from the violence limited her capacity to work.

KENNON ADJUSTMENT

Perhaps loathe to reintroduce the issue of fault in property settlements, the Court stressed that this kind of adjustment was appropriate only in exceptional circumstances.

Later cases similarly emphasize that there must be probative evidence of violence and its impact on the victim’s ability to make contributions. Research suggests that adjustments are generally small and infrequent.

WHAT YOU SHOULD DO

If you have been a victim or believe that you are in danger of family violence, first take the necessary steps to ensure your own safety. Involve local law enforcement or domestic abuse resources, as appropriate. Thereafter, if domestic violence is a factor contributing to the final breakdown of a marriage, be aware that it may affect the terms of a property settlement.

The attorneys at Owen Hodge Lawyers would like to assist you in any way possible. Please call us to schedule a consultation at 1800 770 780.